Demanding A Student's Facebook Password A Violation Of First Amendment Rights, Judge Says

from the well,-we-all-know-who-the-REAL-bully-is-here... dept

For some strange reason, a large number of schools adhere to the notion that their students are not actually citizens of the United States and therefore, not granted the same rights as the "grownups." The rationale for the limitation of these rights usually involves the word "safety," a word that has been (ab)used in various forms to curtail rights of full-grown American citizens in other arenas.

This isn't to say that all, or even most, schools are violating students' rights, but the sheer number of incidents reported isn't very comforting. Fortunately, some decisions are being handed down that should, if nothing else, provide precedent for those challenging administrative overreach.

R.S. was a twelve year old student at a Minnewaska Area middle school. She posted a message to her Facebook page about an adult hall monitor at her school:

"[I hate] a Kathy person at school because [Kathy] was mean to me."

The post was only accessible to her friends. One of her friends brought the post to the attention of the administration. The principal called R.S. into his office and told R.S. “that he considered the message about Kathy to be impermissible bullying.” (???) As a result of the message, R.S. was required to apologize, given detention, and received a disciplinary notation in her records. R.S. was disciplined a second time when she expressed her chagrin that someone had told on her (“I want to know who the f%$# told on me.”) [“f%$#” in original] This time she was disciplined for “insubordination” and “dangerous, harmful, and nuisance substances and articles.” (???)

Venkat Balasubramani has added his own punctuation to some of the more dubious or ridiculous statements made by school officials. First off is the charge of "impermissible bullying" (there's a "permissible" variety?), a broad term used nearly as often by school administrators as "disorderly conduct" is used by cops.

In essence, "R.S." was punished for "being a kid" (i.e., not liking something that happened at school, complaining, being ratted out and complaining about that, etc.). The handling of this first incident makes the school appear to be as vindictive and thin-skinned as the child they punished.

This isn't the end of the story, however. The school also received a complaint from a parent that R.S. was discussing "sexual topics" with another student "on the internet." For whatever reason (most likely stated as "concern for her safety"), the school decided to pull R.S. from class and grill her about the particulars of these conversations. Apparently, her answers weren't good enough, so three school counselors and a taser-armed cop interrogated her until she gave up her Facebook password. They proceeded to search her account, including private messages, for evidence of these conversations. Still not satisfied, they decided to search her private email messages.

After this traumatizing and intrusive incident, R.S. decided to sue the school district for violating her constitutional rights. The court agreed with her on both claims:

First Amendment claims: The court has no trouble concluding that assuming the facts as alleged as true, school officials violated R.S.’s First Amendment rights. The court says that posts on social networks are protected unless they are “true threats” or are reasonably calculated to reach the school environment and pose a safety risk or a risk of substantial disruption of the school environment. R.S.’s posts were not true threats. Even assuming the statements were reasonably calculated to reach the school audience, there was no possibility of disruption.

Fourth Amendment claims: The court also says that the school officials violated R.S.’s Fourth Amendment rights to the extent they rummaged around in her Facebook page and her private email account. Private emails were like letters of other private conversations, and subject to Fourth Amendment protections. Private Facebook messages are no different. There was no evidence that the officials tailored their search to minimize the intrusion. Even if they had, they had no underlying basis to search in the first place.

If the alleged facts are true (and the court takes care to point out this "if"), the school will likely be writing out a settlement check. This decision, a response to the school's motion to dismiss, also allows for claims of invasion of privacy (although it does dismiss claims for "intentional inflection of emotional distress"). It doesn't seem like the school is debating the facts as presented, not if its argument that R.S.'s violation of Facebook policy (she's 12 and you "have" to be 13 to sign up for an account) means she's entitled to fewer constitutional rights is any indication.

Eric Goldman adds his own analysis, pointing out the inherent problem with most bullying policies/legislation:

[I]t's a good example of how administrators might use the "bullying" label as a pretextual justification for punishment. The term "bullying" has way too much semantic ambiguity, but it should never stretch as far as calling another person "mean."

This is something administrators should keep in mind when crafting/revamping school policies. They should also be reminded of this simple fact, as stated by Judge Michael Davis in his decision:

For more than forty years, the United States courts have recognized that students do not check their First Amendment rights at the schoolhouse door.

"Safety" does not trump rights, just as surely as "policy" does not trump (or at least, shouldn't) trump common sense and proportionate responses.

Reader Comments

It doesn't seem like the school is debating the facts as presented . . .

That's because they aren't allowed to debate the facts on a Motion to Dismiss. The facts are taken as true for the purpose of the motion; the issue is whether the facts as pled are enough to state a claim.

But ... that the judge took "pains" (quoting Venkat) to make it clear the allegedly facts may not be true, tends to indicate the court is already wary of the veracity of the plaintiff's claims. Judges do not have to couch the ruling in such terms, and often do not.

What about employers asking potential employees for their Facebook details? In my opinion, that comes under the exact same heading of grievous breach of privacy and security. No one should ever be asked for their password for anything, not just social network sites.

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Agreed. It's good to see sane decisions like that. I'm fairly sure the girl went through quite the emotional distress. I'd rather die than have any1 see my private messages when I were younger so I'd probably put up a much more intense fight. It gets me wondering: if she firmly refused, would they tase her? Torture? Humiliate her to break her mind into revealing the passwords?

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I think that one is easily answered. The ones who got the password and who did so using three school authority figures and one law enforcement figure (armed with a taser).

Four adults all in positions of power against one twelve year old girl. Who had already been forced to give up private information by the school officials.

Bully to them. I hope this cost them an arm and a leg, it's just a shame it's the taxpayers who are footing whatever settlement is given. I think we need reform where those who do actual harm or violate the rights of others are forced to pay for damages and whatnot out of THEIR own pockets. (If that were the case, I suspect a lot more cops would be a bit more careful about abusing their powers.)

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I have always been a firm believer in the idea that if you are in a position of authority and a financial judgment is made against you, then the money from the judgment should come first and foremost from your salary and pension if necessary. Start hitting these law breakers where their wallet is and watch how fast they start respecting other people's rights.

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I agree with the sentiment, but unfortunately it doesn't take into account what we know about human behavior.

I completely subscribe to the idea that we have to be more human with one another, but accountability goes directly against this concept because it can both encourage positive behaviors and abuse. IMO, because of the risk of abuse (e.g., getting sued for saving someone's life, for example), I think it is more likely that it would encourage more ass-covering than it would positive behaviors.

So, were that approach taken, I think that we could sit back and watch as teachers and administration officials worked very hard not to intervene or get involved in any issues at school in order to avoid liability.

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Actually, the problem is we are already at that point you mention as well. Regarding ass covering.

I have multiple jobs, two in the health care field. And we're already seeing lots of things and receiving orders that basically consist of, "Hey, I know you guys might see some things or be around people in dire need of medical assistance. DO NOT TOUCH THEM. No matter what. You can mean well and actually be in a position to help them and potentially save their lives, and some of you are even licensed/certified to do so, but DO NOT. Because no matter what, if things don't go 100% perfectly, and even if they do, chances are you're going to put yourself at risk and our association as well."

However, I do get what you're saying. But at what point do we decide that enough is enough? Meaning, at what point, do we stop footing the bill for the mistakes of others?

Proper reform would make exceptions. Meaning, only in situations like the one above, or involving law enforcement officers abusing their power, etc and if it's determined by a court of law that they have violated the rights of another at that point THAT person is held financially responsible for compensation to the wrong party. Something like that I could and would get behind, as I think the majority of taxpayers would.

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Someone correct me if I'm wrong, but isn't there a law that basically states that if you're genuinely trying to help out someone, say in a car accident, they can't sue you if you make a mistake and accidentally cause more harm?

It just seems that without something like that on the books, no one would dare try and help someone injured, as they could end up in an even worse situation due to simply trying to help and making a mistake.

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In many states, the 'Good Samaritan' laws that you speak of only apply to untrained people. If you are a licensed medical professional and you provide care for someone in an emergency and something goes wrong, you are liable in many cases. It's a problem.

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You'll have to excuse me, my brain seems to have seized up due to trying to understand that. The idea that someone who has no bloody idea what they are doing is less liable for any mistakes they make if they are trying to help, than someone who does know that they're doing in the same situation... how drunk/stoned do politicians have to be to come up with crap like that?

If nothing else that would cause a horrifying affect, where the people who are more likely to be able to help are also the ones who are less likely to want to, due to the possibility of being punished for doing so.

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If the tax payers or footing the bill, I would hope that the school district would release the 3 Couselors and have a diciplinary note in their records. As for the law enforcement individual, he should know the law... Basic Criminal Justice. He/she should be let go as well.

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If you're talking about a private employer, the issues are not the same because there are no Constitutional protections at work. Remember, the Constitution constrains government action. If a public school district, or public official, or public employer does this sort of things, the First and Fourth Amendments come into play. If a private individual or employer does, the Constitution is not implicated and you have to rely on statutory or common law (to the extent it covers the act).

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"What about employers asking potential employees for their Facebook details?" ... That's easy, an employer asking for that in an interview is completely voluntary. Nothing stopping you from telling them to go to hell if they ask that. This child was forced to do it.

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> What about employers asking potential employees
> for their Facebook details? In my opinion, that
> comes under the exact same heading of grievous
> breach of privacy and security.

The difference is that employers are generally private business who are not bound by the 1st and 4th Amendments as these school administrators are.

There are, however, federal employment laws which regulate what even private businesses may ask potential employees. By looking through the private portions of someone's Facebook account, the employer is almost certainly going to come across information that they would be legally forbidden to ask about during the interview.

*That's* the legal tact to take in challenging an employment scenario, not the constitutional violations and invasion of privacy claims that were made in this case.

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If more people paid attention they might remember they pay for all of the stupidity these people end up causing, and they need to speak out when these things are done.
That rather than assume that the system magically takes care of itself, that they need something not part of the system providing oversight.

It would be interesting to find out how many other children these administrators terrorized with these methods who didn't speak out. I'm sure its a wonderful place to learn when students live in fear of comments they make outside of school being used to punish them in school.

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People left in authority positions over people they abused their authority over seems like a screwed up system.

We want to think it will all be puppy dogs a kittens, but the truth is the school officials involved will be seeking retribution in any way possible for this student making public their abuse of the law.

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According to the government, both federal and state, pronouncing the magic words "public safety" makes everything A-OK. For example, why do you have virtually no fourth amendment rights in your car? "Public safety"! See how easy that was? The government just pronounces those two magic words and makes your rights disappear.

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Granted I was in middle school a long time ago, but I recall there being a stink made at the time when the school had police officers question students without their parents present or even notified prior.

A police officer shouldn't be involved unless it's a matter of law, as in, the student is suspected of a crime. If the student is suspected of a crime, they are not old enough to consent to waiving their rights to have an attorney present or have their parents aware or present.

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If an adult flips out over a statement like that from a child, they can not be taught and are unfit to be "teaching" children.
Not done in school, but they wasted time and resources trying to invent a greater crime on the childs behalf to justify what they had done.

It is all clear now

I thought all this anti-bullying legislation was to stop kids from bullying other kids. Really, they want to protect the teachers/administrators from being bullied. And to really be "bullied" you would say the bully would have some sort of irrevocable uncontested power over the bullied. It is a sad day when a 12-year-old girl can successfully intimidate an adult through slights on the internet. That is what is wrong with kids these days...look at the spineless whimps that we trust with their education.

Re: Re: Kidding.

I had an argument on IRC regarding this article. Some idiot was some how coming to the conclusion that the school was justified by comparing this to the girl getting kidnapped or raped, then stating that because she's not legally old enough to make her own decisions, that some how invalidates her rights. I just could not believe anyone could think that.

Administrators' behavior will change..

..as soon as CNN, Fox News, et al, devote as many or more broadcast minutes to violations of students' rights as they do to "warning signs that were missed" after each major school shooting or incident.

Parental Involvement Lacking?

Okay... where were the parents in this loop? As an involved father I would have stomped on the school metaphorically speaking at the first "issue" and if any of the additional crap had happened it would have progressively gotten much worse for that school. My children have a clear line of whom to go to when there's an issue, particularly of this kind, and it is to their parents! The very fact that the school continued with the additional "issues" after the first one is an indicator that the girls parents were not involved as they should have been. Relying on your government to protect your children's rights at school is a very short step away from relying on your government to protect your rights... and we can see where that seems to be going fast!

Re: Parental Involvement Lacking?

If the school becomes aware of something and does not tell the parents how is it the parents fault?

The first issue was literally a 12 yr old saying she disliked someone she perceived as being mean to her.
The school decided she wasn't allowed to have a negative opinion of someone and attacked.
When she expressed anger at someone telling on her, they attacked again.

Then some "parent" was upset because HER CHILD engaged the student in a "sexual natured" chat, and they then decided to pull her out of class, interrogate her and dig as deeply as possible into her life.

I'm willing to bet when they contacted the mother, they never said oh we are gonna yank her out of class, force her to hand over her password, and for extra fun troll through all of her emails.

Parents might assume, apparently incorrectly, that these professionals are actually qualified to educate children. Instead you have an authority figure punishing a child for saying she disliked someone, and being upset that a "private" comment she made was repeated to that authority figure.

Parents often abdicate their responsibilities, expecting society to protect their precious little snowflake. No one expected them to go the extra mile of interrogation and extracting information in violation of the law. I'm willing to bet if they had explained their entire plan the parent would have flipped out, but instead the "professionals" said we know what we are doing.

Re: Re: Parental Involvement Lacking?

Speaking strictly from the way schools are run in my area, the parents would have been called after (sometimes before) the decision to give her detention. She would also have been sent home with a carbon-copy sheet detailing everything for her parents to sign - one copy would have been for the parents to keep, the other two would have been returned to the school to file in various places. To not return it the very next day would be an additional write-up, the student would remain in the office while parents are called into the school to have a conference.

Granted, the child may have forged a signature the first time... Considering that there are several instances and the third one involved another parents independently calling the school, I would wager that this one is a trouble-maker. Not that she should have had to put up with this, but that's just my inference based on the few facts provided.

The school is not a court of law, it has no authority off school grounds. Why do parents appeal to schools with their grievances like serfs to a lord when they have a problem with the child of someone else?

Call the parents... They are the ones who actually have the authority and the responsibility to curtail their children's behavior outside the school yard.

If the headline was "Concerned mom looks through their own child's Facebook to stop bullying!" I don't think this would end up in the news.

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because they would have to admit that this all started because she said on FB that she hated someone at school because that person was mean to her.
And admit they interrogated the child and were unable to force the child to kowtow to their whims.

Re: Re: Wait a minute...

That is the case, from a link below the Eric Goldman article, it mentions that is was the parent of the boy she was having this conversation with. Not the parent of the girl.

Besides, if you did alert the school to such an event in order to protect your child, would you expect the school to have an armed cop interrogate your child as the appropriate response? That would be a traumatizing event that could leave lasting scars. A lawsuit against the school for this is definitely an appropriate response to the school's actions.

unfortunately we have no rights in schools, airports, and malls. When I was in HS I regularly told my teachers to... fill in the blank. I even had a.copy of the constitution on me. needless to say the principals busted out Another piece of legislation saying I had no rights in these places. anti terror laws...

unfortunately we have no rights in schools, airports, and malls. When I was in HS I regularly told my teachers to... fill in the blank. I even had a.copy of the constitution on me. needless to say the principals busted out Another piece of legislation saying I had no rights in these places. anti terror laws...

unfortunately we have no rights in schools, airports, and malls. When I was in HS I regularly told my teachers to... fill in the blank. I even had a.copy of the constitution on me. needless to say the principals busted out Another piece of legislation saying I had no rights in these places. anti terror laws...

unfortunately we have no rights in schools, airports, and malls. When I was in HS I regularly told my teachers to... fill in the blank. I even had a.copy of the constitution on me. needless to say the principals busted out Another piece of legislation saying I had no rights in these places. anti terror laws...

Complete violation

Regardless of her age or what she said about the certain school official, this girl's privacy should have not been invaded this way! I believe it goes the same for potential employers, schools, etc., in the professional world. Facebook is more personal than political, and should be regarded as such. Especially if gaining access to someone's Facebook involves asking for a password. Most people set their profile settings to a private setting and only let their friends see them for a reason.

Also, in the case of this 12 year old girl, where were her parents? What on earth were these administrators thinking grilling this young girl and forcing her to give up her password without getting them involved? If anyone is allowed to ask her for her password, it's her parents and her parents alone.

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That has nothing to do with the law. Just the Facebook terms and conditions, which she isn't old enough to agree to anyway. All this does is make the "contract" voidable, that is, Facebook can choose to terminate her account based on misrepresenting her age. That's it.

Get rid of media in the home...

My kids attend a school with a "no media during the week" policy (TV, cell phones, computers). It's not as impossible to enforce as you might think and its done WONDERS serving vast purposes including situations such as this. There is a smaller audience for this kind of behavior and the emotional element stemming from a given incident is less likely to find its way online when its only accessible two days out of the week - especially two days that are packed with soccor games, birthday parties, fam activities etc....

Re: Get rid of media in the home...

Oh do I pity the children going to that school, they are going to be in for a massive dose of culture shock when they actually hit the real world, as they find themselves completely and utterly incapable of dealing with anything other than person to person interaction or 'approved' media.

Just a head's up, but crippling kids' abilities to mesh with, or even adequately cope with, society, under the guise of 'protecting' them, is not something to be proud of.

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My thoughts exactly. Schools today should focus almost solely on the operation and effective use of TV, cell phones, and computers. Everything I learned in Biology class has since been forgotten, but can be found via google in fractions of a second.

Re: Get rid of media in the home...

Here is a phrase you can work with your children getting good at saying.

"Would you like fries with that?" or "Hey buddy can you spare some change?"

While your busily shoving more onto their plates to give them a "better" childhood than you had, your actually setting them up for failure.
Are your children aware of the protests happening around the globe?
Have you discussed how cultural differences are helping this to happen?
Are they aware of the advances happening in the world?

Why do you need the school to tell you to limit your kids access to reality? Why do parents find it impossible to do these things? Does the idea of your children being stunted in understanding the world enter into the equation?

You do understand you've taken the position of saying its perfectly ok for a school to terrorize a child and read private emails, because they just should have banned FB during the week.

Re: Get rid of media in the home...

> My kids attend a school with a "no media during
> the week" policy (TV, cell phones, computers).
> It's not as impossible to enforce as you might think

It is without violating most of the Bill of Rights.

Your school sounds like something out of a Bentley Little novel. No public school has the authority to regulate what goes on in my home. If I want to let my kid watch TV or use a computer, it's none of the school's business, let alone for them to try and 'enforce' it on me.

And unless my kid goes in and tells the teacher, "I played Halo last night and then watch BIG BANG THEORY," how would the school even know what to enforce?

How to Properly Use FB

I found that doing the following is really helpful.

1) Delete real FB profile.
2) Create alternative profile (yes, a fake name so this way, you're not pressured to add annoying family and others as friends).
3) Privacy, privacy privacy...lock down that profile.
4) If school/work asks for your FB profile, you can confidently tell them that you don't have one.
5) Limit time on FB...you should have a life too.

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The first three words needed on this 'settlement check':

"I hereby resign."

Everyone involved in this case is obviously unfit to be involved in dealing with children in any way, so while a nice settlement check(taken out of the school budget of course, can't have the people involved be punished) would be nice, a real 'payment' to the one who got harmed would be to have those that abused their positions fired and blacklisted from ever being in such a position again.

Complete Invasion of Privacy

The school had absolutely no right to coerce the student. A Facebook account has as much protection against privacy invasion as a personal diary or other items covered by the 4th Amendment - at least from the perspective of a third party (i.e. the school).

Even if the student violated Facebook's Terms and Services, the student's account does not automatically become open to the public - which is what the action's of the school imply should have been the case.

The only legal recourse in this situation would have been for the school to contact Facebook. At which point it would be up to Facebook to hand over the information.

Re: Complete Invasion of Privacy

What about the parents? Shouldn't they have been contacted? If they are doing something like this to a student, her parents should have been contacted. The parent might even have the password, if that were actually warranted (though I doubt they'd be able to convince the parents of the need here). In the end, it should be their call how to handle such a situation.

If something so serious that they would justify this kind of activity is really going on, it's the parent's responsibility to handle this, not the school's. The school should have contacted her parents about this, then butted out.

Gotta ask, Facebook has said multiple times that they are not OK with this and it is against their ToS for someone to coerce a password out of one of their users (or to give your password out).
How long till they setup some sort of reporting system (not sure how else they would find out about this). Some person/business does this more than X times, their page is banned, possibly with a blacklist page on why.

See how many businesses / schools keep up the practice once the first few suddenly don't have a presence on Facebook anymore. Not to mention your pictures/contact-list disappearing.

Re: Facebook ToS

Or the parents were aware that their child was mature enough to be on FB and allowed her to make the account.

And I do believe the 13 yr old thing is some sort of "ZOMG THINK OF THE CHILDREN" panic law that was passed to make the interwebs perfectly safe for children, rather than just some sort of stupid FB construct.

Re: Re: Facebook ToS

the COPPA act, which wasn't just this is what you are thinking of. ( and actually, it is one of the more fair laws on the topic. basically it just says that any website with some form of social feature ( forums, normally) needs parental permission for under 13-year olds to join.

Bullying people with bullying charges

Stay out of others business

Ok, so reading this I get nothing but the vibe of 'pure invasion of privacy.'

Not only is it wrong in all parts of the world to 'hack' someones facebook and email (regardless how old said victim is) It is also wrong (in my eyes) to punish one for expressing their feelings and thoughts... Calling someone 'mean' is not bulling - But interigating a child for their personal and private information is infact bulling... So my conclusion, someone needs to get into these 'teachers' and teach them about the appropriate way to 'react' when people are concerned about a fellow student. I understand it is a teachers job to ensure the saftey of their students, but that doesnt mean that they go through all their students personal thing - If you ask me, Facebook has just created, in people all over the world, a fond desire to be in everyone business because now they cannot handle not 'being in the loop' with all the gossip

First Amendment

Clearly the student's First Amendment rights were violated in this case. The First Amendment guarantees citizens the freedom of speech. This includes social media sites such as Facebook. The student should never have been asked for her Facebook password, this was a direct violation of her rights. I strongly believe that social media sites are protected under this Amendment. The words on these sites simply do not appear, they come from the person typing on the keyboard. Just like a person is allowed to speak freely out loud, they are allowed to speak freely online. This is the case unless the words can be harmful.